Linda A. Jones, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05981170 (E.E.O.C. Sep. 30, 1999)

05981170

09-30-1999

Linda A. Jones, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Linda A. Jones v. Department of Veterans Affairs

05981170

September 30, 1999

Linda A. Jones, )

Appellant, )

)

v. ) Request No. 05981170

) Appeal No. 01975690

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

___________________________________)

GRANTING OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On September 18, 1998, Linda A. Jones, (hereinafter referred to as

the appellant) timely initiated a request to the Equal Employment

Opportunity Commission (Commission) to reconsider the decision in Linda

A. Jones v. Department of Veterans Affairs, EEOC Appeal No. 01975690

(August 20, 1998). EEOC Regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision. 29

C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence that tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's

request is GRANTED.

ISSUE PRESENTED

Whether the previous decision properly dismissed appellant's appeal as

untimely and whether the agency properly dismissed appellant's complaint

for failure to contact an EEO counselor in a timely manner.

BACKGROUND

The previous decision herein found appellant's appeal, postmarked July

10, 1997 to be untimely. That decision noted that appellant indicated in

her appeal statement that she had received the agency's final decision

(FAD) on May 22, 1997. Appellant's appeal package contained a copy of the

final agency decision, an original notice of appeal dated June 2, 1997,

the EEO Counselor's report, medical documentation concerning her mental

impairments of major depression and paranoid schizophrenia, identical

appeal letters addressed to the agency and to the Office of Federal

Operations (OFO),<1> and a letter from the agency dated July 1, 1997 which

forwarded the other documents back to appellant. In the agency's letter,

it states that it received the other documents from appellant on June 23,

1997 and advises appellant to file her appeal with OFO.

The agency's May 19, 1997 FAD in this matter dismissed appellant's

July 23, 1996 formal EEO complaint of harassment and removal from

the agency for failure to discuss the issues in her complaint with an

EEO Counselor and for failure to contact an EEO Counselor in a timely

manner. Specifically, the agency noted that in her formal EEO complaint,

appellant raised the matter of the agency's alleged harassment of

her in the workplace and her February 22, 1996 removal<2> from her

position as a housekeeping aide based on her race, color (black) and

mental disability. The agency explained that while appellant contacted

an EEO counselor on July 17, 1996, that counselor could not assist her

because of a conflict of interest and directed her to other individuals

whom appellant failed to contact. The agency further noted that it mailed

appellant letters on August 15 and 16th, respectively, requesting that she

submit objective evidence to support any claim for compensatory damages

she might intend to raise and that appellant ultimately responded in an

undated letter which merely stated she was "sick" in July/August.<3>

The agency found that since there was no evidence that appellant was

hospitalized on the date of her resignation or in July/August 1997,

then there was insufficient basis for appellant's untimely EEO counselor

contact.

The medical documentation appellant submitted with her appeal from various

physicians indicates that from December 27, 1994 until at least January of

1997, appellant was experiencing significant psychological problems, which

included diagnosis of a recurrent major depressive episode, psychosis, and

schizophrenia, paranoid type, chronic, respectively. The psychologist who

treated appellant until March 30, 1996 indicated that due to her mental

incapacity, she was incapable of following through on contacting the

proper persons at her place of employment for the purpose of filing an

EEO complaint. In an EEO Counselor's report submitted by appellant,<4>

the EEO Counselor indicates that she spoke with several of appellant's

coworkers who corroborated that due to her lapses in judgement and a

limited comprehension of events caused by her depression, appellant

failed to file her complaint in a timely manner.

In her request for reconsideration, appellant asserts that the Commission

should review the documents already submitted and asks for reconsideration

based upon her medical problems, hospitalization and recuperation time

which caused forgetfulness. She submits discharge papers from a recent

hospital stay in October 1998. In response, the agency argues generally

that appellant has not submitted sufficient justification to warrant

reconsideration.

ANALYSIS AND FINDINGS

After a review of the appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

appellant's request meets the criteria of 29 C.F.R. �1614.407(c)(2),

and it is the decision of the Commission to GRANT the request. While

appellant's request fails to raise new and material evidence, or an

issue with precedential implications, it references medical and other

documentation previously submitted on appeal and discussed above which

the previous decision did not, in any respect, address therein.

The Commission has held that where proper appeal rights have been given,

an appeal is untimely filed where the appeal is mailed to the wrong

office, even if it would have been timely filed if mailed directly

to the Commission. See Henry v. Department of Veterans Affairs, EEOC

Request No. 05901116 (November 30, 1990). In several recent cases,

however, the Commission has allowed exceptions to the Henry rule, where

it was evident that the appellant was earnestly attempting to preserve

his appeal rights. See Rodriguez v. Department of the Air Force, EEOC

Request No. 05940933 (June 2, 1995) (confused appellant mailed appeal

within the limitations period to an EEOC District Office); Thompson

v. Department of the Army, EEOC Appeal No. 05940588 (February 24, 1995)

(confused appellant timely filed appeal with agency's EEO Office);

Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,

1994) (appeal filed with agency EEO Office, but agency failed to promptly

forward the appeal to the Commission).

We find that appellant attempted to preserve her appeal rights in a

timely fashion when she initially mailed her appeal to the agency. For

example, two copies of the appeal statement, one for the agency and

one for OFO were apparently mailed to the agency within thirty days of

appellant's receipt of the FAD.<5> Without undue delay after the receipt

of the agency's response directing appellant to file the appeal with

OFO, appellant transmitted her appeal to the Commission. Moreover,

both the medical documentation and the underlying manner in which

the documents were submitted to the agency, as well as the tenor of

appellant's statements on appeal, indicate her confusion. Under these

circumstances, the Commission exercises its discretion to accept the

appeal as timely. We now turn to the merits of appellant's appeal.

We have consistently held, in cases involving physical or mental health

difficulties, that an extension is warranted only where an individual is

so incapacitated by his condition that he is unable to meet the regulatory

time limits. See Crear v. United States Postal Service, EEOC Request

No. 05920700 (October 29, 1992); Weinberger v. Department of the Army,

EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department

of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson

v. Department of Health and Human Services, EEOC Request No. 05900873

(October 5, 1990); and Zelmer v. United States Postal Service, EEOC

Request No. 05890164 (March 8, 1989).

Upon review of all of appellant's medical documentation, the EEO

Counselor's report, and the tenor of the various correspondence submitted

by appellant in this matter, we are persuaded that sufficient evidence

exists documenting appellant's serious mental incapacity during the

time period between her April 1996 resignation and her July 1996 EEO

Counselor contact and later contacts with the agency to warrant remanding

appellant's EEO complaint for continued processing by the agency. Since

this is our first decision on the merits of the appeal, reconsideration

rights are afforded to the parties below.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is the

decision of the Commission to GRANT this request. The decision of the

Commission in EEOC Appeal No. 01975690 and the agency's FAD are REVERSED.

The agency is directed to comply with the Order of the Commission set

forth below. There is no further right of administrative appeal from

that portion of our decision pertaining to the timeliness of appellant's

appeal of the agency's final decision.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to

File a Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. a civil

action for enforcement or a civil action on the underlying complaint is

subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

With regard to that portion of our decision pertaining to the agency's

dismissal of allegation (b), the Commission may, in its discretion,

reconsider the decision in this case if the appellant or the agency

submits a written request containing arguments or evidence which tend

to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. If you file a civil action, YOU MUST NAME

AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY

HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME

AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File a Civil Action").

FOR THE COMMISSION:

Sept. 30, 1999

___________________ _____________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1These letters are dated June 2, 1997 and briefly state that the forms

she was sending would explain her lapse of judgement in failing to respond

through proper channels.

2Appellant alleged that she had submitted her resignation on April 30,

1996 while mentally incapable of making such a determination.

3In her EEO complaint, appellant indicated that she had been hospitalized

from May 9-22, 1996, after having a nervous breakdown.

4This April 10, 1997 document is not contained in the file forwarded by

the agency to the Commission.

5We note that the FAD lists both the agency and OFO addresses in bold

type within a sentence of each other on the document.